National Consumer Disputes Redressal Commission

V.P. Sharma Vs. Fedex

MANU/CF/0389/2019

17.06.2019

Consumer

Concurrent findings of lower Fora can only be challenged on ground of miscarriage of justice or if order was against existing law or perverse

In facts of present case, the Petitioner/Complainant stated in his Complaint that, he handed over a carton 50 pcs of Gun metal bushes to Opposite Party No. 4 along with cash payment of Rs. 11,400 for the services of door delivery of cargo by air to the buyer of the Petitioner, namely Aluworks Ltd. in Ghana. Opposite Party No. 4 handed over the cargo to Opposite Party No. 3, who in turn handed over the same to Opposite Party No. 2. Opposite No. 2 again handed over the cargo to the Respondent, vide airway bill. It was further stated, vide letter that, the Respondent sent the cargo to the airport but the carton was never delivered to the buyer of the Petitioner in Ghana. It was lost during Respondent's custody in the warehouse at the airport in Ghana. The Petitioner submitted claim for US dollar 3000 to the Respondent, which was also acknowledged by Opposite Party No. 2, but no response was received, despite notices. Hence, the Complaint was filed.

District Forum; vide order, partly allowed the Complaint. Not satisfied with order of the District Forum, the Petitioner filed an Appeal before the State Commission. State Commission dismissed the appeal of the Petitioner for enhancement of the amount and confirmed the order passed by the District Forum.

The Petitioner's claim from the opposite parties was to reimburse $3000 with interest, cost of litigation etc. The order passed by the District Forum clearly shows that, the Respondent was the main culprit and other Opposite Parties were agents only. Opposite Party No. 2, 3 and 4 had sent the parcel containing the articles of the Petitioner to the Respondent. Articles of the Petitioner were stolen in the custody of the Respondent. Hence, Opposite Party No. 2, 3 and 4 were not liable for non-delivery of the articles of the Petitioner at Ghana. The District Forum did award compensation for loss of goods, but reduced it to Rs. 20,000 only, apart from cost of litigation etc.

The State Commission in its order stated that the Counsel for the Respondent explained that value of articles disclosed in Airfreight invoice, was US $ 250. The Petitioner did not protest when he noted cheque of value in the airfreight invoice. The value of US $ 250 came to Rs. 17,500 at the current price of Rs. 70 per dollar. District Forum had awarded Rs. 20,000 in place of Rs. 17,500. It was more than the amount disclosed by the Petitioner. The Respondent remitted the amount awarded by the District Forum, vide cheque dated 16th June, 2016 for Rs. 27,252, in favour of the Petitioner, which, however, was not accepted by the Petitioner and returned to the Respondent. This showed the bona fide of the Respondent. The Petitioner submitted that it was a case of forgery and cheating committed by OP No. 4 and the Respondent jointly. He submitted that, he has been restraining himself from initiating criminal action against the OPs for the aforesaid offences. The State Commission rightly held that the Petitioner may take such steps as are available to him in law and that nothing prevented him from doing so and dismissed the appeal.

It is a settled proposition of law that under Section 21(b) of the Act, this Commission has limited jurisdiction. It is not required to re-appreciate and re-assess the evidence led by the parties and then reach to its own conclusion on the facts of the case. The concurrent findings of the lower Fora can only be challenged on the ground of miscarriage of justice or if the order was against the existing law or perverse.

Since in the present case, the Petitioner has only challenged the findings of Fora below on facts which are based on the evidences led before it, this Commission has no jurisdiction to re-ascertain and re-appreciate the evidence led by the parties and substitute its own finding. No miscarriage of justice or perversity has been brought to my notice. The Revision Petition has no merit and the same is dismissed and the order passed by the State Commission is confirmed.

Tags : Compensation Enhancement Entitlement

Share :

Top

High Court of Calcutta

Dipak Kumar Das Vs. Raghunath Maity and Ors.

MANU/WB/1312/2019

14.06.2019

Environment

Present Court ought not to interfere with impugned order, since provision of appeal under Section 22 of National Green Tribunal Act, 2010 is akin to that of second appeal

The present challenge under Article 227 of the Constitution of India has been directed against an order whereby the National Green Tribunal passed a direction on the State Pollution Control Board to conduct an inspection. Further, to find out whether the Rice Mill run by the present Petitioner is still operating without necessary approval from the concerned authorities.

As rightly pointed out by learned counsel for the opposite party no. 1, a remedy is provided under Section 22 of the National Green Tribunal Act, 2010 for an appeal to the Supreme Court against such order of the National Green Tribunal. It is provided categorically in the said Section that, such an appeal would be available on one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (CPC) thereby putting the standards on the same footing as a second appeal, to be heard for admission before a Division Bench of this Court.

There are certain grounds on which, this Court is not inclined to interfere under Article 227 of the Constitution. First, even if a second appeal had been preferred before a Division Bench of this Court, this Court, sitting singly, would not have the jurisdiction/determination to take up the said second appeal for admission hearing. Since the provision of appeal under Section 22 of the 2010 Act is akin to that of second appeal, on similar logic, judicial propriety demands that this Court ought not to interfere with the impugned order.

Secondly, since the impugned order does not reflect ex facie any jurisdictional error sufficient to justify interference under Article 227 of the Constitution of India, there could be no occasion for this Court to interfere with the same under the said Article.

Thirdly, since a superior forum, being the Supreme Court, has the jurisdiction to entertain an appeal against the said order, it would be providing an additional forum of challenge to the parties if the present application under Article 227 of the Constitution of India is entertained, against an order passed in which a Special Leave Petition can, in any event, be preferred to the Supreme Court, thereby increasing one forum of appeal de hors the provisions of the statute itself.

In such view of the matter, judicial propriety demands that, this Court does not interfere with the impugned order. The Petitioner, however, is granted liberty to approach the appropriate forum with a proper challenge against the impugned order.

Tags : Inspection Jurisdiction Appropriate forum

Share :

Top

Customs, Excise and Service Tax Appellate Tribunal

Agarwal Sponge & Energy Pvt. Ltd. and Ors. Vs. Commissioner of Central Tax, Belgaum Commissionerate

MANU/CB/0112/2019

14.06.2019

Excise

Charge of clandestine clearance cannot be established merely on basis of statement of Director

In facts of instant case, Appellant No. (1) is engaged in the manufacture of sponge iron falling under Chapter 72 of Central Excise Tariff Act, 1985 and was registered under Central Excise Department and are clearing the goods on payment of excise duty. The officers of the DGCEI, conducted investigation and recovered various documents.

After completion of the investigation, Appellants were issued with the show-cause notice by the Deputy Director General of Central Excise Intelligence, proposing to demand Central Excise duty of Rs. 4,69,148 along with interest and also proposed to impose penalties under the provisions of Central Excise Act and the Rules made thereunder.

Appellant filed detailed reply to the show-cause notice and the Assistant Commissioner after considering the submissions of the Appellant vide Order-in-Original confirmed the demand as proposed in the show-cause notice apart from imposing penalties on both the appellants. Aggrieved by the said order, appellant filed two appeals before the Commissioner (Appeals) Belgaum and the learned Commissioner (Appeals) vide the impugned order rejected the appeal of the Appellant No. (1) but in the case of Appellant No. (2), the Commissioner (Appeals) reduced the penalty to Rs. 3,00,000 under Rule 26 of the Central Excise Rules.

The entire case against the Appellant no. (1) was built on the basis of the statement of the Director and there is no other evidence to establish the factum of clandestine clearance. Further, the charge of clandestine clearance cannot be established merely on the basis of statement of the Director who has alleged coercion and undue influence exhorted on him for extracting confession.

Further, consistently Courts have held that, duty demand cannot be sustained solely on the basis of statement recorded during the course of investigation in the absence of corroborative evidences in the form of consumption of electricity, purchase of raw-material, electricity consumption, manpower, capacity of the factory to produce the alleged quantity, mode of transportation and sale of goods, receipt of sale proceeds and other documentary evidences. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department."

There is a discrepancy in the quantity of the sponge iron alleged to have been purchased from the appellant. As per the Department, the Managing Director has admitted the duty liability to the extent of 290 MT whereas the duty demand has been confirmed on 293.42 MT of sponge iron which is neither admitted nor corroborated with any documentary evidence.

It is also settled law that allegation of manufacture and clandestine clearance, the burden lies on the Department to prove the charge against the assessee with proper and cogent evidence but in the present case the Revenue has not conducted complete investigation and relied upon merely the statement of the Executive Director and confirmed the duty demand which in view of the decisions cited supra is not sustainable in law. Further, once the demand is not sustainable, penalty is not imposable on the Appellant No. (1) and Appellant No. (2) in view of the decisions in the case of Jindal Praxair Oxygen Co. Ltd. Vs. CCE and Goa Bottling Co. Ltd. - Vs. CCE - 2006 (206) E.L.T. 950. The impugned orders are not sustainable in law and therefore both the impugned orders are set aside by allowing the appeals of the appellants.

Relevant

Jindal Praxair Oxygen Co. Ltd. Vs. CCE - MANU/CB/0133/2007
, Goa Bottling Co. Ltd. - Vs. CCE

Tags : Demand Confirmation Legality

Share :

Top

High Court of Gauhati

Bhaigyoram Khaklary and Ors. Vs. The State of Assam

MANU/GH/0443/2019

11.06.2019

Criminal

Re-examination of a witness by party calling the witness is a right conferred under statute and unless such a right is declined, a party cannot be denied the opportunity to re-examine witness

Present Petition had been preferred against the order passed by the learned Sessions Judge, by means of which the learned trial Court had allowed the petition filed by the prosecution side under Section 311 of Code of Criminal Procedure, 1973 (CrPC) with a prayer to recall a witness.

Petitioners have assailed the impugned order primarily on two counts. Firstly, that no proper reason has been recorded by the learned trial Court before allowing the prayer for recall of the witness in exercise of powers under Section 311 of CrPC. Secondly, the prosecution side having failed to make a prayer under Section 154 of CrPC before the witnesses (PW-17) was discharged after his cross-examination, such a prayer cannot be granted at this point of time.

Recording of evidence of the prosecution side is still under progress in this case. The application under Section 311 of CrPC had admittedly been filed by the prosecution side on the same day on which the witness PW-17 was discharged after the cross-examination. There is nothing on record to indicate that, the prosecution side had declined re-examination of the witness (PW-17).

As per Section 138 of the Evidence Act, 1872 a witness is to be examined-in-chief, then cross-examined and then re-examined. Therefore, re-examination of a witness by the party calling the witness is a right conferred under the statute and unless such a right is declined, the party cannot be denied of such an opportunity to re-examine the witness, if the circumstances of the case so justifies.

Law is firmly settled that, jurisdiction under Section 311 of CrPC is discretionary and unless there is an error in exercise of such jurisdiction, the revisional Court would not ordinarily interfere with the order of the trial court passed in exercise of such discretionary jurisdiction.

In the impugned order, the learned trial Court has made it clear that the defence side would have the liberty to cross-examine the PW-17 afresh. Therefore, no prejudice can be said to have been caused to the Petitioners in the matter. It cannot be said that, prayer to re-call the witness PW-17 was for the sole purpose of curing a lacunae. The impugned order does not suffer from any infirmity warranting interference by this Court.

Further, as per section 154 of the Evidence Act, a party can cross examine his own witness, if the same is permitted by the Court. The power conferred under Section 154 is discretionary in nature and would depend on the facts and circumstances of each case. In the present case, although the Respondent/State had made a prayer in the application filed under Section 311 of CrPC to declare the witness (PW-17) as a hostile witness, no such declaration has been made in the order. Therefore, the question of cross examining the PW-17 by the prosecution side would be subject to the leave granted by the Court at an appropriated stage and also subject to the condition that the defendant side is permitted to further cross examine the said witness. Petition disposed off.

Tags : Recall Witness Cross examination Legality

Share :

Top

High Court of Bombay

Ramchandra and Ors. Vs. Kiran and Ors.

MANU/MH/1314/2019

10.06.2019

Arbitration

When right, title and interest was being created in immovable property exceeding value of Rs. 100, award was required to be duly registered

In present case, dismissal of the execution proceedings seeking to execute an award passed by an Arbitrator on the ground that, said award was unregistered is the subject matter of challenge. Petitioners submitted that, the Executing Court erred in dismissing the execution proceedings. It was not necessary to have the award registered in view of the fact that the same did not create any new rights in the parties and the rights already existing had been adjudicated upon.

It is not in dispute that, the proceedings in the civil suit filed between the parties had been referred to the Arbitrator. The Arbitrator included various properties in which the parties had interest and passed his award. It can be seen from the award that, the Petitioner and the Respondent no. 3 on one hand have been held to be absolute owners of some of the properties in which the Respondent nos. 1 and 2 are required to relinquish their rights. Similarly, in other properties, the Respondent nos. 1 and 2 have been held to be joint owners and the Petitioner and the Respondent no. 3 have to relinquish their rights in those properties.

As per the provisions of Section 17(1)(b) of the Registration Act, 1908, it is clear that in any testamentary document purporting to create or declare any right, title or interest in any immovable property exceeding value of Rs. 100 is compulsory registrable. On reading of the entire award, it becomes clear that, ownership rights in favour of the parties has been created with regard to some of the properties and they have been called upon to relinquish their rights with regard to other properties. It is therefore evident that, since the right, title and interest was being created in immovable property exceeding the value of Rs. 100, the award was required to be duly registered. In absence of such registration, the award cannot be executed.

It is thus found that, the Executing Court was legally correct in coming to the conclusion that, as the award that was sought to be executed was not registered, the execution proceedings were not tenable. There is no reason to interfere with the said order. It is open for the Petitioner to have the award registered and thereafter take such steps as are permissible in law to execute the award, the Writ Petition stands dismissed.

Tags : Award Execution Registration

Share :

Top

High Court of Karnataka

Kiran Vittal Poojary and Ors. Vs. Prismatic Engineering Private Limited and Ors.

MANU/KA/3599/2019

06.06.2019

Banking

Persons who were in charge of and responsible for conduct of business of company at time of commission of offence are only liable for criminal action

The Petitioner is a employee of SIDBI Venture Capital Limited, which appointed the Petitioner as a nominee Director of the Avni Energy Solutions Private Limited. As nominee Director, the Petitioner has no role in day to day affairs of the company. The petitioner had also resigned from the Board of Directors on 9th September, 2016 as Nominee Director and was appointed as Observer on the Board of Directors on the same day.

The complainant is a company registered under the Companies Act, 1956. In the course of transaction, towards part payment of the dues, an invoice was issued along with a cheque dated. The complainant submitted the cheque. However, the cheque was dishonoured with the endorsement that 'the payment was stopped by the Drawer'. The complainant thereupon sent a legal notice and thereafter the complaint was filed. The Magistrate by an order has taken cognizance of the offence and directed issuance of summons to the Petitioner. In the aforesaid factual background, the Petitioner has approached this court under Section 482 of the Code of Criminal Procedure, 1973 seeking quashment of proceedings.

A Liability under Section 141 of the Section 141(1), Negotiable Instruments Act, 1881 is fastened vicariously on a person connected with the company. Therefore, the persons who are sought to be criminally made liable should be at the time of commission of offence, in charge of and responsible to the company for conduct of the company. It is well settled that, every person connected with affairs of the company would not fall within the ambit of Section 141 of the Act and only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of offence will be liable for criminal action.

In SS.M.S. Pharmaceuticals ltd. Vs. Neeta bhalla and another', It has been held that mere reproduction of the wording of Section 141(1) of the complaint is not sufficient to make a person liable to face prosecution.

It is evident that, no specific role has been attributed to the Petitioner and there has been a reproduction of the language of the provision used in Section 141 of the Act. Admittedly, the Petitioner was a nominee Director who had resigned on 9th September, 2016. Section 2(60) of the Companies Act, 2013 defines the expression 'officers who is in default' to mean the officers of a company mentioned therein viz., whole time director, key managerial personnel, where there is no key managerial personnel such director or directors as specified by the board in this behalf, any person who under the immediate authority of the board or any key managerial person is charged with any responsibility as well as any person in accordance with whose advise directions or instructions the board of directors of the company is accustomed to act.

In the instant case, from the averments made in the complaint, the Petitioner also does not fall within the meaning of the expression 'officers who is in default'. Thus, even if the averments made in the complaint are taken to be correct in its entirety, then also no offence is made out against the Petitioner. The continuance of the proceedings against the Petitioner in the fact situation of the case amounts to abuse of process of law. In view of preceding analysis, the entire proceedings are hereby quashed. Petitions allowed.

Relevant

SS.M.S. PHARMACEUTICALS LTD. VS. NEETA BHALLA AND ANOTHER', MANU/SC/0622/2000

Tags : Proceedings Quashing of

Share :